The Human Potential Project

Our Cyborg Future: Law and Policy Implications

“In June 2014, the Supreme Court handed down its decision in Riley v. California, in which the justices unanimously ruled that police officers may not, without a warrant, search the data on a cell phone seized during an arrest. Writing for eight justices, Chief Justice John Roberts declared that “modern cell phones . . . are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.” This may be the first time the Supreme Court has explicitly contemplated the cyborg in case law – admittedly as a kind of metaphor. But the idea that the law will have to accommodate the integration of technology into the human being has actually been kicking around for a while.

Humans have rights, under which they retain some measure of dominion over their bodies. Machines, meanwhile, remain slaves with uncertain masters. Our laws may, directly and indirectly, protect people’s right to use certain machines – freedom of the press, the right to keep and bear arms. But our laws do not recognize the rights of machines themselves. Nor do the laws recognize cyborgs – hybrids that add machine functionalities and capabilities to human bodies and consciousness.

As the Riley case illustrates, our political vocabulary and public debates about data, privacy, and surveillance sometimes approach an understanding that we are—if not yet Terminators—at least a little more integrated with our machines than are the farmer wielding a plow, the soldier bearing a rifle, or the driver in a car. We recognize that our legal doctrines make a wide swath of transactional data available to government on thin legal showings—telephone call records, credit card transactions, banking records, and geolocation data, for example—and we worry that these doctrines make surveillance the price of existence in a data-driven society. We fret that the channels of communication between our machines might not be free, and that this might encumber human communications using those machines.”